) Pramod Kumar Lamba v. Sri Durga Sen

where under leaned First Appellate Court has dismissed the appeal.

3. The brief facts of the case is that the plaintiff appellant filed an Eviction Suit no. 17 of 2002 with a prayer for decree of Khas possession of the Schedule A premises of the suit, after evicting the defendant therefrom and in the alternative for declaration of title and for recovery of 1 SA No. 558 of 2018 possession, for a decree for arrears of monthly rent at the rate of Rs. 300/- for a period of 26 months from February, 2000 to March 2002 and cost of the suit. The suit was originally filed by the mother of the present appellant namely Most. Raj Kumari and she died during the pendency of the suit and the present appellant Pramod Kumar Lamba has been substituted as the plaintiff in her place.

4. The case of the plaintiff in brief is that the original plaintiff claims herself to be the sole owner of the suit property, consequent upon the said land settled as refugee land. After the death of her husband in the year 1955, the original plaintiff lived with her parents and therefore, let out premises to the defendant on rent, 15 years before the date of institution of the suit; @ Rs. 300/- per month. The plaintiff contended that the defendant stopped paying the rent from February 2000 and thus defaulted in payment of rent. Therefore, the defendant is liable for eviction. The plaintiff also took the plea of personal necessity of the suit premises. The original suit was filed as Eviction Suit simpliciter under the provision of Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 and during pendency of the suit, an alternative relief was added for declaration of the title of the plaintiff over land. The defendant challenged maintainability of the suit on various technical grounds. Besides it was pleaded that the defendant has been occupying the suit premises in his own personal capacity. The defendant denied the landlord–tenant relationship between the plaintiff and him and also denied the title of the plaintiff over the suit land.

5. On the basis of the rival pleadings of the parties, learned trial court settled the following six issues :- I. Whether the suit is maintainable in its present form ? 2 SA No. 558 of 2018 II. Whether the plaintiff has valid cause of action for filing the suit? III. Whether there is relationship of landlord and tenant between the parties? IV. Whether the plaintiff is entitled for a decree for Khas possession of suit premises after evicting the defendant therefrom? V. Whether the plaintiff is also entitled for a decree for arrears of monthly rent @ Rs. 300/- for a period of 26 months from February 2000 to March, 2002 amounting to Rs. 7800/- ? VI. Whether the plaintiff is entitled for any other relief or releifs as prayed for?

6. In support of his case, the plaintiff examined two witnesses and proved the documents which have been marked as Ext. 1 to 8. From the side of the defendant, four witnesses were examined but no documentary evidence was produced.

7. Learned trial court first took up issue nos. III, IV and V together and after considering the evidence in the record and the testimony of PW 1 in para 21 of his cross- examination that the suit property stood recorded in the name of Anabad Bihar Sarkar in the Record of Rights, no. 161/ 1995 and the deposition of PW 2, wherein, he has categorically stated that the original plaintiff was never residing in the suit premises, as also considering that the plaintiff has not mentioned anywhere in the plaint, with specific date, month and year when, she let out the suit premises on rent to the defendant and the fact, that the plaintiff has not filed any rent agreement, rent receipt and the document regarding possession, came conclusion that the plaintiff has failed to establish that there is any relationship of landlord and tenant between the plaintiff and the defendant in respect to the suit premises and decided the issue nos. III, IV and V against 3 SA No. 558 of 2018 the plaintiff.

8. Learned trial court next took up issue no. VII and after considering the admission made by PW 1 in para 21 of his deposition that the suit land has been record in the name of Anabad Bihar Sarkar, came to the conclusion that the plaintiff has failed to establish that the plaintiff has right, title and interest over the suit property and decided the issues no. VII against the plaintiff.

9. Learned trial court next took up issue no. I and II together and held that the plaintiff has got no valid cause of action for filing the suit and the suit is not maintainable and dismissed the suit.

10. Being aggrieved by the judgment and decree passed by learned trial court, the plaintiff filed Civil Appeal no. 63 of 2017, which was ultimately heard and disposed of by learned First Appellate Court by the impugned order as already indicated above.

11. Learned First Appellate Court formulated the following point for decision : “ Whether the plaintiff is entitled to recover the possession of the suit property either as landlord or as its owner? “

12. Learned First Appellate Court made independent appreciation of the evidence in the record and observed that keeping in view of the facts of the case, it was incumbent upon the plaintiff, to prove rent receipt to prima facie establish the landlord – tenant relationship between the parties and went on to hold that learned trial court has not committed any error, in arriving at the conclusion that the plaintiff failed to establish landlord- tenant relationship, between the plaintiff and defendant.

13. In respect of title of the plaintiff, learned First Appellate Court considered that admittedly the defendant was in 4 SA No. 558 of 2018 possession of the suit premises for 15 years prior to the institution of the suit and once the plaintiff failed to establish the relationship of landlord and tenant between the plaintiff and the defendant, the plaintiff is not entitled to recovery of possession on the basis of the previous possession, considered that non-filing of the agreement, claimed to have been entered into in respect of the settlement of the land, in favour of the plaintiff by the State is a reason, by which, the plaintiff could not establish her title, because there was no document to show that the proceeding for settlement initiated and the same ever got concluded and also considered the plea of the defendant that the land belongs to the State and the defendant is in illegal occupation of the same and went on to hold that the plaintiff has failed to establish the claim of the title over the suit land. Learned First Appellate Court further observed that the suit was not maintainable either under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 or under the Transfer of Property Act, hence, the plaintiffs is not having valid cause of action and dismissed the appeal.

14. It is submitted by learned counsel for the appellant that both the courts below have committed grave error in applying the provision of law as mandated in Rule 7 of Order VII to the Schedule 1 of the Code of Civil Procedure by observing that relief larger than the one claimed by the plaintiff in the suit cannot be granted though the larger relief was already claimed by the plaintiff, hence it is submitted that this Second Appeal be allowed by settling appropriate substantial question of law and the suit of the plaintiff be decreed.

15. Having heard the submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that learned First Appellate 5 SA No. 558 of 2018 Court has in no uncertain manner held that the plaintiff is not entitled for recovery of possession either as landlord or as the owner and just as a passing remark, has mentioned that under such circumstances, the plaintiff is not entitled to any just or equitable relief and after thus observing, made a comment regarding the judgment referred to by the trial court in its judgment, regarding the settled principle of law that the relief larger than the one claimed by the plaintiff in the suit, cannot be granted, as has been held by the Hon’ble Supreme Court of India in the case of the Rajendra Tiwary v. Basudeo Prasad and